FECL 51 (May/June 1997):
Mr Benavides is a well-known professor of economics and politician in his home country of Peru. Among other things, he has been a candidate for the post of Mayor of Lima, and has been working for many years with Deutscher Entwicklungsdienst, a reputed German development agency which runs projects in Peru.
Early in 1997, Mr Benavides wanted to visit a number of Western European countries. He started his European journey in Oslo, from where he took a plane to Berlin via London. Mr Benavides had been invited to Germany by a number of well-known organisations, including the Union of Teachers and Scientists, GEW. He was in possession of a Schengen-visa issued by the German embassy in Lima. But when Mr Benavides arrived at Berlin-Tegel airport on 21 February, the German Border Protection (Bundesgrenzschutz: BGS), denied him entry and invalidated his Schengen visa. Mr Benavides was told that he was denied entry to Germany due to "security considerations". Since he was also told that the ban applied only to Germany, Mr Benavides asked for the permission to travel to France, where his children live. But a BGS officer denied the request, arguing that it was impossible to invalidate a Schengen visa only for Germany. Instead, the BGS decided to put him on the next plane to London, although he had no visa for the UK. Mr Benavides was given no further information neither on the specific grounds for his removal, nor on his right to appeal.
Obviously, the BGS informed the British authorities of the grounds for Mr Benavides' removal. Upon arrival at London-Heathrow airport, British Immigration officers interrogated him for several hours and placed him in the Immigration Detention Centre. It was only thanks to the interventions of British friends that he was not sent back to Peru. After a second interrogation Mr Benavides was finally granted a six month stay permit for the UK.
Inquiries by a German friend and by a Berlin lawyer at various German authorities, including the Federal Interior Ministry, gradually brought to light that the entry ban against Mr Benavides was based on a report made by the department responsible for State security matters at the BKA (Federal Office of Criminal Investigation) to the German criminal search system, INPOL, and to the SIS (Schengen Information System). According to the BKA, the secret services of a "friendly state" had provided information that Mr Benavides had links with a Japanese(!) terrorist organisation.
However, both his lawyer and the Berlin Administrative Court seized with Mr Benavides' complaint against his removal from Germany were denied full access to the records. The Administrative Court approved of Mr Benavides' complaint. The Court, inter alia, found that the defendant (the German State) "neither proved nor even otherwise substantiated the presence of any considerable security protection interest", and that it was "impossible to conclude how reliable the allegations of the "friendly service" are", especially since it remained unclear which country's service was being referred to and since it was obviously not the "service" of the complainant's country of origin.
After the Court decision Mr Benavides was finally allowed to travel to Berlin on 7 March, where he obtained a new Schengen visa.
However, his plight was not over. When he continued his European journey to Paris, he was once again interrogated, this time by the French authorities, who casually mentioned that the "friendly" service referred to by the Germans was... the Russian secret service. On his flight back to Peru via an airport in the USA, he was stopped by US immigration officials in the transit hall. They put a stamp on his passport. It read: "Expelled".
In the meantime, Mr Benavides has requested the Federal Interior Ministry to allow him to examine all files concerning his person held by the BKA or stored in national data bases or the SIS. Furthermore, Mr Benavides demands the deletion of all files with respect to his person as soon as he has been given the opportunity to read them. He also has requested the Federal Data Protection Commissioner to support his application.
Mr Benavides' registration in the SIS has been confirmed by the Federal Interior Ministry. But so far the authorities concerned have not answered the question of whether the approval of Mr Benavides' complaint by the Berlin Court meant the deletion of the report to the SIS.
Sources: Information provided by Wulf Schubert, Hamburg; BKA and BGS records, February 1997; Decision of the Berlin Administrative Court, case no VG 10 A 168.97 (quotations are our translations from German); letter to Federal Interior Minister Kanther, by Wulf Schubert; 9.4.97, Frankfurter Rundschau, 8.3.97.
The case of Mr Benavides provides an impressive illustration of how Schengen policies can affect not only refugees and other "undesirable" immigrants but even "respectable" people, who have succeeded in overcoming the plethora of economic and administrative barriers preventing "third country" nationals from entering the Schengen territory. The German embassy certainly did not issue a Schengen visa to Mr Benavides without prior thorough examination of his application according to the strict requirements of the Schengen 'Common Instructions for Consulates" (which, inter alia, provide for information exchange between the Schengen member states prior to the issuing of a visa).
Mr Benavides' case shows that not even the possession of the precious Schengen visa is a reliable safeguard against denial of entry to the Schengen territory.
That the measure was soon lifted by a court, shows that judges still can be found in Berlin, but is little comfort. Thanks to his position, the Peruvian professor could count on the help of friends in Europe and could seek legal assistance. But it must be feared that many other, less privileged "third country" nationals are being denied entry to the Schengen territory on similarly arbitrary grounds, without any publicity and any real possibility for them to seek legal remedy.
Peruvian authorities confirmed time and again that Mr Benavides was not suspected of any wrong-doing in his country of origin, and neither French nor British services found any incriminating evidence against Mr Benavides that might justify a denial of entry.
In spite of all this, Mr Benavides was registered in the SIS. He will probably never know, whether the data concerning him have been deleted or not. Indeed, if one is reported to the SIS in the alleged interest of the security of a member state, no information is given to the person concerned. The same applies to the application made by a German, Mr Wulf Schubert, for access to his own personal files. Since BKA records mention him as a friend and host of professor Benavides, Mr Schubert is concerned that he too might have been reported to the SIS.
Both professor Benavides and Mr Schubert must henceforth reckon with the possibility of their being registered in some national, European, and - considering the US expulsion measure against Benavides - American data base as terrorist suspects or "contacts" of terrorist suspects.
We may soon discover that Schengen is here not only to deter foreign guests but also to intimidate their European hosts.